Haley Morgan Jones v. Pablo E. And Cynthia Huracha-angel ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
HALEY-MORGAN JONES, an
individual, No. 68426^-1
Appellant,
DIVISION ONE
and TAMRA MULVIHILL, an individual;
and KAYLA HOCHSTETTER, an UNPUBLISHED OPINION
individual,
Plaintiffs, r-3 lf> c
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PABLO E. HUARACHA-ANGEL and \ :~'a _>'•['[
CYNTHIA HUARACHA, husband and yp
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wife, and the marital community ;*.
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composed thereof; and JOHN DOE 4?
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and JANE DOE, husband and wife,
and the marital community composed
thereof; and RICHARD ROE; and
ABC CORPORATION; and XYZ
CORPORATION, FILED: June 17, 2013
Respondents.
Grosse, J. —The presumption of negligence does not apply to a following
driver who collides with the preceding car if there was an emergency or unusual
condition that could not reasonably be anticipated. Here, the circumstances of
the collision raised genuine factual issues as to the existence of an emergency
and whether the following driver was traveling too fast for the conditions. We
therefore reverse the trial court's entry of summary judgment in favor of the
following driver.
No. 68426-4-1 / 2
FACTS
On November 18, 2007, Haley-Morgan Jones was driving southbound in
the right lane of Interstate 5 near Mount Vernon. Pablo Huaracha-Angel was
driving behind Jones in the same lane. Both Jones and Huaracha-Angel were
going about 58 to 60 miles per hour, below the speed limit. Pablo and his wife
Cynthia estimated that they were traveling about 5 to 6 car lengths behind Jones.
As Jones approached the exit to State Route 20, Cynthia noticed a small
vehicle, believed to be a pickup truck, moving at a greater rate of speed in the left
lane. The pickup was passing Jones's car on the left when, without signaling, it
suddenly veered across the right lane in front of Jones's car, clipping the left front
bumper. The pickup, which apparently exited the freeway, was never identified.
The precise movements of Jones's car after being clipped are not
completely clear, but it eventually came to rest perpendicular to and partially
blocking the lanes of travel. Cynthia saw Jones's car start swerving "back and
forth like a snake." Upon seeing Jones's car begin to swerve, Pablo immediately
reduced his speed. Cynthia yelled at Pablo to "slam on the brakes" and he
indicated that he "brake[d] the maximum I could, squeal my tires, did everything I
could to avoid hitting her."
Pablo could not avoid Jones's car completely, but he apparently was able
to swerve toward the right, avoiding the main passenger area and hitting her car
near the rear driver's-side door. The force of the collision caused Jones's car to
No. 68426-4-1 / 3
spin around and hit the rear of the Huaracha-Angels' car. There is no dispute
that the collision injured Jones.
After the collision, Jones got out of her car and spoke with Pablo and with
Washington State Patrol Trooper Mike Rudy, one of the investigating troopers.
Jones told Rudy that the phantom vehicle had clipped her left front bumper. The
two passengers in Jones's car were unable to provide Rudy with any further
details about the accident.
Later, Jones was unable to recall any meaningful details about the
accident, including the events immediately preceding the accident, the actions of
the phantom vehicle after it clipped her car, the movements of her car after the
contact, the speed or following distance of the Huaracha-Angels' car, and the
amount of time between the contact with the phantom vehicle and the collision
with the Huaracha-Angels' car.
Based on his observations at the scene, Trooper Rudy believed that the
contact with the phantom vehicle had caused Jones's car to rotate; he saw no
evidence that Jones's car had swerved first. Rudy was unaware of anything that
Pablo could have done under the circumstances to avoid the collision. He
doubted that Pablo could have maneuvered completely around Jones's car
because it was partially blocking the lane of travel.
Jones filed this action for negligence against the Huaracha-Angels on
November 12, 2010. The Huaracha-Angels moved for summary judgment.
No. 68426-4-1/4
Following a hearing on February 6, 2012, the trial court granted the motion.
Jones appeals.
ANALYSIS
Jones contends that the trial court erred in dismissing her negligence
action on summary judgment. She argues that the evidence, including the
Huaracha-Angels' claim that they were following Jones by 5 to 6 car lengths at
58 to 60 m.p.h., raised a material factual issue as to whether they were following
too closely under the circumstances. Our review of summary judgment is de
novo.1
The rule in Washington is that "where the driver of a vehicle is following
another vehicle, the primary duty of avoiding a collision rests upon the following
driver and in the absence of an emergency or unusual conditions, the following
driver is negligent if he runs into the car ahead."2 The prima facie showing of
negligence may be overcome by evidence of an emergency or unusual condition,
such as when the preceding vehicle stops suddenly or without warning "at a
place where a sudden stop is not to be anticipated."3
But even in such situations, the following driver is not necessarily excused
from liability:
[T]he jury must answer whether the following driver was traveling
closer to the preceding vehicle or at a greater speed than
1 City of Seauim v. Malkasian. 157 Wn.2d 251, 261, 138 P.3d 943 (2006).
2Vanderhoffv. Fitzgerald. 72 Wn.2d 103, 105, 431 P.2d 969 (1967).
3 Rvanv.Westqard. 12 Wn. App. 500, 505, 530 P.2d 687 (1975).
No. 68426^-1 / 5
reasonable care required under the circumstances. It is for the jury
to decide whether the circumstances were such that a sudden stop
or decrease of speed was to be anticipated. While the following
driver has the primary duty of avoiding an accident, he is not guilty
of negligence as a matter of law simply because he collides with a
vehicle in front of him.t4]
The degree to which the following driver is required to anticipate the likelihood of
sudden stops by the preceding car necessarily depends on the specific factual
circumstances.5 Consequently, except in rare cases, questions about the
existence of an emergency or unanticipated condition or whether the following
driver was traveling too close under the conditions are for the trier offact.6
Here, the evidence indicated that the Huaracha-Angels were traveling at
about 58 to 60 m.p.h. and 5 to 6 car lengths behind Jones as her car approached
a freeway exit. Pablo stated that when he first noticed Jones's car start to
swerve, he reduced his speed. But the evidence also indicates that he did not
commence hard breaking until he saw Jones's car spin sideways and come to a
stop or until Cynthia yelled at him to "slam on the brakes." In explaining why
4 Ryan, 12 Wn. App. at 505; see also RCW 46.61.145(1) (driver of motor vehicle
shall not follow vehicle any closer than reasonable and prudent, considering
speed of vehicles, traffic, and highway conditions).
5 See Ryan, 12 Wn. App. at 506 (no absolute requirement for driver traveling at
lawful speed limit in center lane of freeway to presume that preceding cars might
stop suddenly).
6 See Ryan 12 Wn. App. at 504-09; see also Hough v. Ballard. 108 Wn. App.
272, 279, 31 P.3d 6 (2001) ("Whether there has been negligence ... is a jury
question, unless the facts are such that all reasonable persons must draw the
same conclusion from them, in which event the question is one of law for the
courts.").
No. 68426-4-1 / 6
Pablo was unable to bring their car to a controlled stop before the collision,
Cynthia acknowledged that the accident "happened fast ... it was just like a
second."
Viewed in the light most favorable to Jones, the evidence suggested both
a relatively short interval between the phantom vehicle's contact and the ensuing
collision, as well as some delay in Pablo's reaction to the erratic movements of
Jones's car. Those circumstances, coupled with the location of the accident near
a freeway exit, where some movement of cars among lanes could be expected,
raised factual issues as to the existence of an emergency condition and whether
the Huaracha-Angels' car was following to close for the conditions.7 On this
record, the Huaracha-Angels failed to demonstrate that they were entitled to
judgment as a matter of law.8 Summary judgment was therefore not warranted.9
Jones also challenges the trial court's award of costs to the Huaracha-
Angels under RCW 4.84.080 and .090. Because summary judgment was
improperly granted, we also reverse the cost award.
7See Vanderhoff, 72 Wn.2d at 106 (reasonable minds could differ on whether or
not one driving in heavy traffic at 35 to 40 miles per hour on a wet pavement 50
feet from the preceding car was negligent).
8See Ward v. Coldwell Banker/San Juan Props.. Inc.. 74 Wn. App. 157, 161, 872
P.2d 69 (1994) (Summary judgment not proper if "reasonable minds could draw
different conclusions from undisputed facts, or if all of the facts necessary to
determine the issues are not present.").
9Jones also contends that the trial court improperly "shift[ed] the burden of proof
during oral argument on the summary judgment motion. A review of the
transcript of the hearing provides no support for this claim.
No. 68426-4-1 / 7
The Huaracha-Angels have moved to strike certain portions of Jones's
appellate brief containing evidence that Jones did not present to the trial court on
summary judgment. As we have previously noted, argument in a brief "is the
appropriate vehicle for pointing out allegedly extraneous materials - not a
separate motion to strike."10 And in any event, we do not consider any argument
or evidence that was not before the trial court.11 We therefore deny the motion to
strike.
Reversed and remanded.
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WE CONCUR:
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10 Engstrom v. Goodman. 166 Wn. App. 905, 909 n.2, 271 P.3d 959, rev, denied,
175 Wn.2d 1004, 285 P.3d 884 (2012).
11 See RAP 9.12 (on review of summary judgment, appellate court will consider
"only evidence and issues called to the attention of the trial court").